Calcutta High Court (Appellete Side)
National Consumers Cooperative Store ... vs State Of West Bengal & Ors on 5 December, 2025
05.12.2025
Piya
ct no. 30 WPA 27401 of 2025
sl. 4
National Consumers Cooperative Store Ltd.
Vs.
State of West Bengal & Ors.
Mr. Soumya Majumdar, Sr. Adv.
Mr. Arkadipta Sengupta
Mr. Tirthankar Dey
Ms. Deboleena Ghosh
Ms. Ria Naskar
........... for the Petitioner
Mr. Kalyan Kr. Bandopadhyay, Sr. Adv. (through VC)
Mr. Sambuddha Dutta
Mr. Ritesh Kr. Ganguly
........for the State
1. Affidavit of service filed be kept with the record.
2. The petitioner has preferred the writ application
praying for declaration that the policy Guideline
bearing notification no. 2059 dated 29.05.2025,
issued by the Senior Deputy Secretary,
Government of West Bengal, Food & Supplies
Department, is inconsistent with the Provisions as
enumerated in Targeted Public Distribution
System (Maintenance and Control Order), 2024
and also being violative of Article 19 (1)(g), 300A of
the Constitution of India has prayed for quashing
of the order bearing notification no. 2059 dated
29.05.2025, issued by the Senior Deputy
Secretary, Government of West Bengal, Food &
2
Supplies Department, and the consequential
vacancy notification issued on 04.11.2025.
3. The petitioner's case is that the petitioner is a
registered Cooperative Society under the West
Bengal Cooperative Societies Act, 2006 and has
been legitimately operating its M.R.
Distributorship under valid licences issued
pursuant to the West Bengal Public Distribution
System (Maintenance & Control) Order, 2013,
which continues to remain valid up to 31.12.2026.
4. The distributorship functions as an essential link
in ensuring timely transportation and delivery of
food grains under the Targeted Public Distribution
System (TPDS). The economic viability of the
distributorship business has always been
statutorily and administratively safeguarded by the
State through tagging norms requiring each M.R.
Distributor to handle 2.5 lakh ration cards and 50
dealers, as stipulated in Government
Memorandum dated 13.04.1999.
5. The said principle was repeatedly reaffirmed,
including in the high-level meeting held on
19.05.2018, presided over by the Principal
Secretary, Food & Supplies Department. Contrary
to the long-standing policy and settled position,
3
the State Government, by issuing an impugned
guideline dated 29.05.2025, drastically reduced
the number of ration cards and dealers to be
tagged with existing distributors across four newly
created zones, thereby severely curtailing the
business volume of the petitioner and rendering
the distributorship commercially unviable.
6. Acting upon the said guidelines, indicative
advertisements for fresh vacancies have already
been issued, affecting petitioner's legally vested
rights. The petitioner states that the impugned
action is arbitrary, unreasonable, violative of
Article 14, destructive of legitimate expectation,
and contrary to statutory objectives of NFSA,
2013. Hence, the petitioner is constrained to
invoke the extraordinary jurisdiction of this
Hon'ble Court.
7. Mr. Soumya Majumdar, learned Senior Counsel
submits that on adopting the argument placed by
Mr. Debabrata Saha Roy, learned Senior
Counsel in WPA 25866 of 2025, he places his
further argument in this case as follows.
8. Mr. Majumdar, states that the notification dated
29.05.2025 is in the nature of guidelines and/or
4
executive instructions and it is well settled that the
domain of the executive issuing executive
instruction is nothing but residual governmental
functions that remains after legislative and judicial
actions but in the instant case the said notification
issued in the garb of an administrative order seeks
to curtail the occupied legislation under Targeted
Public Distribution System (Maintenance and
Control Order) 2024 and on this account the said
notification dated 29.05.2025 is otherwise bad in
law and is liable to be set aside.
9. It is further stated that Rule 27 of the Targeted
Public Distribution System (Maintenance and
Control Order) contemplates creation of
distributorship and appointment of a licensee and
the procedure involved therein, whereas the
instant notification in effect supplants the said
provision. That an executive instruction could
make a provision only with regard to a matter
which was not covered by the Rules and that such
executive instruction could not override any
provision of the Rule.
10. It is stated that the Targeted Public Distribution
System (Maintenance and Control Order) 2024, is
a statutory control order issued in the name of
5
the Governor in exercise of the powers under
section 3 and section 5 of EC Act 1955 and any
such provisions of the said order can't be read
down and or diluted by an administrative
guideline.
That the notification (guidelines) dated
29.05.2025 is not a policy decision and at best it
could be described as an executive instruction
which is substantially different from a policy
decision and the concept of policy guidelines is
nothing but a superfluous concept and as such no
decision can be taken in exercise of such concept
being otiose in nature.
11. Mr. Majumdar further states that the control order
is a law in exercise of power as earmarked in Entry
33, List III, 7th Schedule of the Constitution of
India 1950 and that Rule 27 of Targeted Public
Distribution System (Maintenance and Control
Order), 2024 does not contemplate enmasse
decentralisation of vacancies, therefore the
occupied field of the legislation can't be threaded
by the executive, more so when the same has civil
consequences and is also an infringement of the
Fundamental rights enshrine under Article 14,
19(1)(g), 300A. 300A.
6
12. The procedure of appointment of distributor has
been consistent in all the Control Orders, effected
till date and that the concept as sought to be
enforced vide notification dated 29.05.2025
does not feature in any of the previous Control
Orders nor the present one.
That if an action is required to be taken in
a particular manner, it has to be taken in that
manner only or not at all and in this case, the
action of the authorities in trying to supplant a
provision of the Control Order is otherwise bad in
law and liable to be set aside.
13. It is further stated that by the impugned order
dated 29.05.2025, the Government of West Bengal,
Food & Supplies Department, has decided to
reduce the volume of business by de-tagging ration
cards and dealers without initiating any
proceedings, which clearly violates the petitioner'
rights guaranteed under Articles 14, 19(1)(g), and
21 of the Constitution of India. From 2019 to
2025, the price of fuel has increased by 60%, yet
the transport rebate of petitioner no. 1 has not
been increased.
As per the order dated 21.07.2014 and the
subsequent orders issued by the State
Respondents, the Petitioner have invested
7
substantial amounts of capital in various aspects to ensure the smooth functioning of the business.
14. Mr. Majumdar further argues:-
i. That Para 2 of the order dated 29.05.2025 which is as follows:-
"Now, with a view to bringing parity among the Distributors and imparting greater efficiency in the delivery mechanism, framing a policy guideline to rationalize the Distributorship business of the existing Distributors by creating new vacancies out of the large Distributors is felt necessary by the Department.", is in total contradiction to the direction at internal page 3 of the order which goes like this:-
"It may so happen, that even by keeping the DRC at the minimum level of the existing Distributorship(s) the spareable/ extra DRCs are less than minimum prescribed range for a new Distributorship. In such cases, possibility may be explored to transfer those excess DRCs with another Distributor(s) in vicinity with DRCs less than the maximum prescribed range. Suitable transfer proposals should be placed with justification along with sketch map etc. with approval from district administration."
It is stated that while the purpose of the State is to bring parity, the order directing that the DRC in respect of the existing Distributorship's would be kept at 8 the minimum level, whereas where spareable/extra DRCs are less than minimum prescribed range for new distributorship, then possibility to transfer them to another Distributor(s) in vicinity with DRC's less than the maximum prescribed range, would be proposed.
It is stated that, this itself is clear disparity as in case of existing dealership the DRC's are kept at the minimum whereas in case of another Distributor(s) in vicinity, transfer of excess DRC's was to be proposed who has less than maximum prescribed range (here it was not being kept at the minimum).
Thus it is argued that this is clear violation of Article 14 of the Constitution of India.
ii. Mr. Majumdar, also places the following paragraph of the said order:-
"The DCF&Ss shall explore the necessity of rationalization of distributorships in their districts and identify the location of new vacancies, if any, in accordance with this order and as per the provisions laid down in the "Chapter-V" of the West Bengal Targeted Public Distribution System (Maintenance & Control) Order, 2024, by the 30th June, 2025."9
It is argued that chapter V of the WBTPDS (Maintenance & Control) Order 2024, is on the basis of a parliamentary law dedicated to distribution system, so a state departmental order not being law cannot supplant (substitute) the occupied field of law with reference to Article 13(3) of the Constitution of India.
It is further argued that by the direction as above, the executive by its order "in accordance with this order" is trying to supplant the provisions laid down in chapter V of the WBTPDS (Maintenance & Control) Order, 2024 as object of Control Order, 2024 is different.
iii. Article 246, Seventh Schedule, list III-
concurrent list, number 33 is placed and stated that such law making power cannot be supplanted/substituted by executive orders. Proviso to Article 162 is relied upon in support of such argument.
15. Finally, Mr. Majumder submits that the impugned order is for the benefit of new Distributors and not for card holders or public interest, as it is seen that the purpose is to frame policy 10 guidelines to rationalize the Distributorship business.
16. Mr. Bandhopadhyay, learned Senior Counsel appearing for the State/Respondent places the copy of the petitioner's licence at page 35 and submits that the said licence is not valid at present.
17. From a written note submitted, it appears that in respect of the issue raised by the petitioner in Para 9 of the writ petition, Mr. Bandhopadhyay's contention is that the West Bengal Targeted Public Distribution System (Maintenance and Control) Order, 2024, came into force w.e.f the day of it's publication in the Official Gazette, i.e. 01.08.2024 repealing the West Bengal Public Distribution System (Maintenance and Control) Order, 2013. Therefore, the petitioners are guided by that order since 01.08.2024.
Moreover, in terms of Clause 68(2)(a) of the WBTPDS(M&C) Order 2024, anything done or any action taken under the said repealed Control Orders shall be deemed to be done or taken under the corresponding provisions of this Order.
18. In respect of the petitioner's case in Para 11 to the writ application, it is stated by the State that 11 Clause 27(1) of the aforesaid Control Order relating to procedure for creation of distributorship and appointment of a Licensee, is reproduced below:
"27(1) The State Government in the public interest and in the interest of the beneficiaries may rationalize the fair price shops and number of ration cards to be tagged or to be retained with a distributorship."
Therefore, it is evident that the Department is well within it's right to issue the GO. No.2059-FS Dated: 29.05.2025 with a view to ensure equitability in income as admissible commission, administrative convenience and avoid unnecessary expenditure in terms of transportation charges.
19. Regarding the petitioner's stand in Para 14 to the writ application, Mr. Bandopadhyay states that Vide GO No. 3498-FS/Sectt./Food/4P 21/2024 Dated: the 2nd September, 2024, relaxations have been made in terms of godown capacity and specifications of Distributors in Sub-areas, Hill areas of Darjeeling and Kalimpong, Tea Garden areas of Darjeeling, Jalpaiguri and Alipurduar, Riverine areas of North 24 Parganas & South 24 Parganas and Municipality/Municipal Corporation areas.
12Requirement of financial solvency mentioned in GO No. 1706 dated: 21.07.2014 has been reduced to Rs 25 Lakh vide GO No. 1910-FS Dated:
11.05.2022.
20. In respect of the petitioner's contention at Para 17 of the writ application that:-
In a review meeting held in Khadya Bhavan on 19.05.2018, it has been decided that at the time of declaration of fresh vacancy for M.R. Distributor, existing provision of tagging 2.5 lakh ration cards are to be followed.
It is countered by the State with the argument that:-
It's merely a Minutes of Meeting and hence, cannot override a notified Control Order.
21. Finally, Mr. Bandopadhyay denies the contention of the petitioner herein at Para 27 of the writ application, wherein the petitioner has stated that:-
After introduction of door step delivery i.e., to say that the Distributor shall deliver the ration articles to the doorstep of the dealers, question of distance from dealer's point to Distributor's point became irrelevant, as such by bifurcation of one or two Distributors to set up a new Distributorship, de-linking dealers and ration cards from the existing Distributors, making them economically unviable is wholly unreasonable, unfair and unjust.
22. Mr. Bandopadhyay argues that:-
The contention is factually incorrect.13
The charges for transportation of foodgrains to the FPS Dealers by the Distributors through door-step-delivery, are reimbursed by the Government and hence, it has been an endeavour of the State Government to minimize the same.
In this regard, point no. 2 of page 2 of the GO No. 2059-FS Dated: 29.05.2025 may be referred to, which reads as follows:
'Locations should be identified in such a way that the total outlay on account of transportation cost gets diminished after setting up of new Distributor'.
(A) The Licenses are issued to a Distributor against a vacancy for distributorship for transporting and delivery of foodgrains at the doorsteps of an FPS in lieu of a Commission.
The rational of the policy has been finalized after considering various aspects of transportation cost to be borne by Government; convenience to FPS dealers and distributors, logistics factors, geography, administrative factors and viability.
However, if in this process, any particular licensee feels that the profits are not as per his choice and belief, he has the liberty to other surrender the license and any other distributor who finds that the profits margin will suit his requirement, may apply and get the license as per vacancy is declared. Issuance of an annual license is a contractual obligation based on the terms and conditions mutually agreed from issuance notification for selection and grant of license.
23. The following judgments are relied upon by the State:-
a. Bharat Singh & Ors. v. State of Haryana, & Ors., (1988) 4 SCC 534, (Para 13).
b. Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. & Anr., (2011) 1 SCC
640. 14
"41. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is an executive or legislative policy. The Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country. When the Government is satisfied that change in the policy was necessary in the public interest it would be entitled to revise the policy and lay down a new policy."
c. State of M.P. v. Narmada Bachao Andolan, & Anr., (2011) 7 SCC 639.
"36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Singh Vijay Pal Singh v. State of U.P. [(2007) 6 SCC 44], Villianur Iyarkkai Padukappu Maiyam v. Union of India [(2009) 7 SCC 561] and State of Kerala v. Peoples Union for Civil Liberties [(2009) 8 SCC 46] .)
37. Thus, it emerges to be a settled legal proposition that the Government has the 15 power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only be challenged where it offends some constitutional or statutory provisions."
24. Thus Mr. Bandopadhyay submits that the writ petition having no merit should be dismissed.
25. Mr. Majumdar in reply states that the memorandum dated 13th April, 1999, was issued by an order of the Governor wherein it was clearly stated that it was being issued in supersession of all orders issued earlier in this regard (Para 2), whereas the impugned order dated 29.05.2025 is neither by an order of the Governor nor in supersession of earlier orders.
26. It appears that the order dated 29.05.2025 issues "guidelines" for rationalization, though in the last paragraph it has been stated that notice shall be issued after obtaining approval of the State Government to invite applications.
27. Subsequently, Notice of vacancy no. 3489/FMR/13L-17/2025 dated 04.11.2025 has been issued.
28. It appears that an approval of the impugned order dated 29.05.2025 regarding "guidelines" may have 16 been obtained, but the said order (guidelines) does not bear either by the order of the Governor nor does it note that the same has been issued in supersession of all earlier orders in this respect and as such in absence of such mandatory requirement, the earlier orders including the order dated 13.04.1999 remain in force till date and thus the petitioner prima facie has a right to protect it's business/livelihood.
29. Mr. Majumdar, also relies upon Para 41 in Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. & Anr., (Supra).
"41. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is an executive or legislative policy. The Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country. When the Government is satisfied that change in the policy was necessary in the public interest it would be entitled to revise the policy and lay down a new policy."
30. Mr. Majumdar further states that the power to the State Official/Authorities has been extended under 17 Section 3(6) and 5 of the Essential Commodities Act.
31. The National Food Security Act, 2013 also extends some powers to the State (Sections 10, 12, 24, 35 & 38) and Section 40, which gives power to the State Government to make rules/laws, which is in consonance with Article 256.
32. As such any reforms in TPDS has to have the approval of the State Government, which in this case is clearly missing considering that the impugned order/guidelines on the basis of which vacancy notifications are being issued is signed by a Senior Deputy Secretary and admittedly not by the order of the Governor.
33. Mr. Majumdar, further brings to the notice of the Court that the impugned order dated 29.05.2025 has been issued not in "public interest" but as "it is felt necessary by the department" (Para 2).
34. It is further stated that clause 8 of the TDFS (Control) Order, 2015 provides for Distribution of food grains by states.
35. Para 2 of the WBTPDS (Maintenance & Control) Order, 2024 is brought to the notice of the Court which is set out herein:-
"AND WHEREAS, in pursuance of clauses 4, 9, 10, 11, 12, 13, 14 and 15 of the Targeted 18 Public Distribution System (Control) Order, 2015, the State Government is empowered to issue order under section 3 of the Essential Commodities Act, 1955 for regulating the ration cards, licensing and regulation of fair price shops, operation of fair price shops, monitoring, ensuring transparency and accountability, penalty, powers of inspection, search and seizure and appeal, and the matter connected therewith and incidental thereto."
36. It is submitted that the said control order of 2024 has been issued in pursuance of clauses 4,9,10,11,12,13,14 & 15 of the TPDS (Control) Order, 2015 and these clauses specifically talk about regulating ration cards, licensing fair price shops etc.
37. Finally Mr. Majumdar, places Article 154 of the Constitution:-
"154.Executive power of State (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Nothing in this article shall--
(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor."19
38. It is submitted that the executive power of the State lies with governor, which in this case has not been exercised.
39. In support, Article 162 is also relied upon:-
"162. Extent of executive power of State Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."
40. Mr. Majumdar rests his case by placing Article 166 and states that this is his response to all the judgments relied upon by the State:-
"166. Conduct of business of the Government of a State (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of 20 the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
* * * * *"
41. As such, on hearing the respective sides and considering the relevant provisions of law, judgments relied upon and the impugned order and notification, it is evident that the petitioner has made out a prima facie case of being prejudiced and thus pending hearing of the writ application, the order dated 29.05.2025 issued by the Senior Deputy Secretary, Government of West Bengal and vacancy notification no.
3489/FMR/13L-17/2025 dated 04.11.2025 issued by the Director of District Distribution, Procurement and Supply, Government of West Bengal be stayed till the 26th of February, 2026 or until further order, whichever is earlier.
42. As the states intends to use an affidavit, affidavit in opposition be filed by the 9th January, 2026, reply thereto by 30th January, 2026. Matter be listed for hearing in the monthly list of February, 2026.
(Shampa Dutt (Paul), J.)